Principles of European Law
The Topics *Economic and Monetary Union *Free movement of goods - duties, charges, taxes *Free movement of goods - quantitative restrictions *Competition, mergers and compensation *State Aid and EU supports *Free movement of persons *Citizenship The single market was originally developed in order to increase economic prosperity and to contribute to "an ever closer union among the peoples of Europe". ARTICLE 26(2) TFEU '- The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured in accordance with the provisions of the Treaties. Free Movement of Goods Multi-level governance in action. The harmonization of laws is necessary for integration to succeed. *Single European internal market *Factors of production to move freely *Creates a level playing field of competition *Competition law prevents companies from fragmenting the market *Rules on free movement prevent the member states from fragmenting the market *Integration through law *Citizen as a protected consumer with protected interests *Protective function of national law is attacked and prohibited *Regulatory function of the Commission to ensure internal market flourishes, remove discrimination *Centralized control *ECJ focus on MARKET PENETRATION *EU is sovereign in this area, exclusive competence *FORBIDS PROTECTIONIST MEASURES ''Customs Duties '''ARTICLE 3 TEU - It is a community task to establish the common market, principle of mutual loyalty and cooperation. It will create wealth and sustainable development with high levels of competitiveness. This will raise the standards of living and quality of life in the community. ARTICLE 26 TFEU - the internal market comprises an area without internal frontiers, in which free movement of goods, persons, services and capital is ensured Free movement of goods - avoids detrimental effects of protectionism of own state which leads to goods that no-one wants to buy, and to promote the rights of consumer choice, quality and price. ARTICLE 28 TFEU '- The Union is a customs union which covers all trade in prohibition of customs duties between Member states and all charges of equivalent effect. Any product in circulation in the EU internal market, even from 3rd countries. '''ARTICLE 30 TFEU '- customs duties and MEQRs are prohibited 'ARTICLE 31 TFEU '- Common customs tariffs are set by the commission 'TNT Freight Management - '''Goods may be classified by their intended use to determine whether or not they can be taxed No new customs duties may be created. '''DIAMONDS CASE '- any charge imposed on goods by reason of the fact that they cross a frontier which is not a customs duty in the strict sense is not justified 'BAUHUIS '- No taxes or charges of equivalent effect to a customs duty and pose an obstacle 'ESSENT NETWERK NOORD '- discriminatory internal taxation is also prohibited, eg. electricity surcharges with an effect equivalent to a customs duty 'ARTICLE 110 TFEU '- No member state shall impose internal taxation of any product which directly or indirectly discrimination against goods from another member state. 'HUMBLOT '- Cars engine sizes were taxed internally in a series of bands. However, the host state, France, did not produce any cars of the higher bands and therefore indirectly discriminated with tax against imported goods, in violation of the Treaty. 'COMM v GREECE - '''taxation of cars with large engine sizes, argued necessary to protect the environment. Was an objective justification and allowed, not discriminatory as in Humblot. '''ARTICLE 110(2) TFEU - '''MS shall not impose internal taxation which grants protection to national products '''COMM v UK '(wine and beer case) - If it crystallizes consumer habits it limits choice. Must allow consumers widest choice possible, without favouring national products, in this case beer as UK had no real wine industry. Tax model must facilitate consumer choice rather than limiting it. Wine and beer sufficiently similar competing products. Market integration, consumer choice. 'COMM v SWEDEN '(wine and beer case) - Indirect protection to beer through taxation alleged, found in favour of Sweden. Selling price of wine double that of Beer, so the additional tax was proportionate because before tax and after tax prices were proportionately similar. Thus, the difference in tax treatment was not enough to influence consumer habit due to the prices. Even though beer a domestic product, wine imported. No protection afforded. Market integration, consumer choice. Direct discrimination - applies only to the imported product, eg. 'LUTTICKE '- germany only taxed imported powdered milk but not domestically produced 'GEDDO CASE '- Quotas affecting imported goods are also prohibited Prohibition of Quantitative Restrictions between Member States 'ARTICLE 34 TFEU - '''Quantitative restrictions on imports and all measures having equivalent effect are prohibited between MS '''ARTICLE 35 TFEU '- exports 'ARTICLE 36 TFEU '- defences available to the MS; In the interests of the Nation DEROGATIONS *Public Morality *Public Policy / Security *Protection of life and health of humans animals or plants *Protection of national treasures possessing artistic, historic or archaeological value *Protection of Commerical and industrial property *Must not disguise arbitrary discrimination between the MS *No hidden restrictions *Must be proportionate and justified - cannot go beyond what is needed to have the intended effect. 'COMM v IRELAND '- this list is exhaustive - Ireland could not rely on the fact that requiring a symbol of 'foreignness' on imported products would protect consumer interests of origin. 'HENN AND DARBY '- English customs refused imports of porn magazines and films even though there was no such ban on domestically circulated goods declaring that it was in the interests of public morality. ECJ accepted the rule, holding that public morality was the MS to define. 'CONEGATE '- UK customs refused entry of imported blow up erotic dolls, whilst there were restrictions on domestic goods they were unequal as they did not prohibit manufacturing and sale. Could not rely on public morality grounds, although could apply the same restrictions once the goods were in circulation. 'DASSONVILLE '- Scotch whiskey imported from Scotland into France and bought by Belgium which required a certificate of origin which was difficult for French importers to provide. Invalid because discriminatory against imported product. Restricted trade and unjustified. Capable of hindering directly or indirectly community trade. MEQR - '''"capable of hindering, directly or indirectly, actually or potentially, intra-Community trade" CASSIS DE DIJON '''- Regulation applicable to both domestic and imported goods required that drinks sold as fruit liqueur had to be at least 25% volume whereas the french produced drink was only 10-20%. Regulation meant that the drink could not be sold as cassis, but had to be called something else. This restricted its marketing and sales potential, was held to be an MEQR despite Germany's argument that health concerns meant that volumes had to be regulated in this way. PRINCIPLE OF MUTUAL RECOGNITION - if one country recognizes a product other EU countries must do the same. FOUR MANDATORY REQUIREMENTS: RULE OF REASON (in Cassis) #Effectiveness of fiscal supervision #Protection of public health #Fairness of commercial transactions #Defence of the consumer These have been enlarged by the ECJ over time to include; environmental protections (danish bottles) interests of social and economic policy (oebel). Reasonable restaints which fall outside the scope of article 34. '''MICKELSSON - Swedish law preventing use of imported jet-skis anywhere but the permitted areas which were selectively few. Held to be an indirect quantitative restriction and in violation of the Treaty. Treated imported goods less favorably. COMM v IRELAND ('buy irish campaign) - Irish government supported a campaign to promote only domestic goods with widespread advertising and a 'Guaranteed Irish' sticker - gave competitive advantage - MEQR '''SCHMIDBERGER '- To allow anti-pollution demonstration, Austrain government closed a popular transit route. German transport company argued that this was an MEQR action. Interefered with free movement of goods. ECJ held that it was justified - fundamental right of assembly was favoured over fundamental freedom of movement of goods. '''COMM V FRANCE - French governement failed to prevent the violent protests of french farmers against imported agricultural products, which breached EC law to fulfill treaty obligations, in this case establishing internal market. KECK '- Resale at loss? National restrictions limiting certain types of selling arrangements are not covered by the scope of article 34 because the MS retain their procedural autonomy, as long as they apply equally to national and domestic products. '''WALTER RAU '- Belgian legislation prevented the selling of margerine which was not cube shaped or in cube shaped packaging. It applied to both domestic and imported products and it was argued that it wasnt an MEQR because it was necessary to protect the consumer so that they could easily distinguish between butter. Because the law was so unusual it made it more difficult for imported products to satisfy it and the defence was not applicable because it went far further than was necessary to achieve the objective which could have more suitably been reached with labelling. 'COMM V GERMANY '(beer purity case) - Germany wanted to justify the requirement that all drinks marketed as bier contained only certain specified ingredients on grounds of consumer protection claiming that German consumers would associated bier with these ingredients. ECJ held it was a hindrance to imports and defeated mutual recognition purpose. 'DANISH BOTTLES CASE ' - limitation on imported drinks that they must be a standard bottle size and shape to be recycled and reused to protect the environment went further than was required because they could be reused if the policy was altered to accept them. Held MEQR, defence of environment not apt. 'FAMILIA PRESS '- Germany did not allow imported magazines offering competitions or prizes because this would threaten smaller ones which could not offer such grand prizes. ECJ rejected this defence, stating that such competition did not breach the Treaty and was in the interests of the consumer. 'DE AGOSTINI FORLAG '- Swedish law tried to prevent advertising of imported products targeted at the under 12s. Not allowed, as legislation already existed to limit such action. Despite it being a selling arrangement. 'COMM v UK '- ECJ found UK requirement that goods include label of origin to be an MEQR because it wasn't necessary and therefore was an additional requirement imposed on imported goods ALLOWS TO ASSERT PREJUDICES. However, may remove consumer choice in this respect. Style directives set minimum standards and mutual recognition to prevent market conformity. Harmonisation could otherwise have the effect of limiting consumer choice. 'PGIs and PGOs '''proteect national diversity, protection of geographical indicatiors, and designations of origin. *To be protected the product must possess; *Disctinctive qualities *Reputation *Other characteristics arising from geographical origin *Eg. Champagne - France *Otherwise would undermine cultural heritage Would be destructive to consumers' ability to distinguish low and high quality products which would lead to abuse. *Geographical indicating names which have become generic or common are not protected *eg. '''GERMANY AND DENMARK v COMMISSION '- feta and cheddar cheese are too generic. *ECJ must balance societal goals under the defences art 36 and the protection of market integration MADURO - 1) Centralised constitutional model - Negative integration: application of market rules which enforece the development of legitimate positive integration through democratic mechanisms 2) Competetive constitutional model - Constitutionalism of negative integration - market freedom and individual rights protected against public power 3) Decentralised constitutional model - National democratic legitimacy, derived from European Economic constitutional freedoms and is conditioned. Economic and Monetary Union The TEU of which MS are signatories is resolved to converge economies and strengthen them to establish an economic and monetary union, with a single stable currency. Union promotes economic solidarity and growth. Economic and Monetary Union is included in TEU. - Promotes social cohesion and solidarity, currency is the euro. Formed in 1969 but not successful. EMS (European Monetary System) established in 1978. Delayed due to economic circumstances. EMU approached in three stages - 1) completion of the internal market, closer economic convergence. 2) European banking system, ECB created to coordiante national monetary policies and to form a common policy, control over budgeting. 3) Locking of exchange rates and single currency regulated by the ECB. UK negotiated an opt-out clause. *It will enhance growth because it saves transaction costs due to the closer economic convergence between the Nation States. *A single-currency removes the cost of exchange-rate conversation when money is moving in the EU. The Commission has calculated that the total cost saved is 25 billion Euros. (One Market, One Money (European Commission 1990) *The Commission’s slogan – ‘One Market, One Money’ means that there is greater efficiency in the EU market because it isn’t necessary to convert currencies. *It therefore encourages trade between the European Nations and facilitates it. *Fosters stable prices and low inflation. Makes long-term business plans between EU countries more viable and more desirable because inflation is unlikely to fluctuate and create uncertainty for investors. *Centralization of the monetary prevents political pressure. *Independence of the ECB is doubted, little government control or regulation or accountability All restrictions on movement of capital / payments between MS are restricted - '''ARTICLE 63 TFEU Verkooijen' case' that an MS granting exemption from taxes to shareholders on the condition that the company is a national one (in the Netherlands) was held to be contrary to EU law. ARTICLE 119 TFEU '- Economic and Monetary Policy, adoption of economic policy which is based on the close coordination of MS economic policies, internal market, common objectives, principle of open market economy with free competition. *Stable prices *Sound public finances *Monetary conditions *Sustainable balance of payments '''ARTICLES 120-126 TFEU '- Economic Policy Art 120 - Shall conduct Economic policies with a view to the achievement of Union objectives Art 121 - Shall regard economic policies as a matter of common concern and coordinate with the Council, Oversight and control of the council Art 127 - European Central Bank shall maintain price stability and support general economic policies in accordance with open market and free competition Art 136 TFEU - Council shall adopt measures to strengthen the coordination and surveillance of budgetary discipline and set out policy guidelines to ensure compatibility. ECJ later amended to include provison that euro currency EU states establish a stability mechanism to be activated to safeguard the stability of the eurozone as a whole, granting financial assistance. 'PRINGLE v IRELAND '- challenged the validity of the addition by the ECJ of the European Stability Mechanism in the Treaty - determined that it was compatible with EU law. MP had challenged the Irish governments decision to ratify by claiming that it was incompatible with existing treaty provisions because it attempted to increase EU competences into MS exclusive competency areas. Held that Union already had the right to govern in these areas. Stability and growth revisited - Stability and growth package for the European Monetary Union devised - criteria for debt reduction, prevention of economic imbalances through structural reforms, aims to bring levels of national debt to below 60% GDP. *Would update methods of assessing debts to recognise liabilities of ageing populations, pension burdens, household debts *Public expenditure growth would be set, increased property tax to aid debt reduction *Pressing issues of austerity in Greece, Spain, Portugal, *Principle of solidarity TREATY ESTABLISHING EUROPEAN STABILITY MECHANISM 2012 *Purpose; *Art 3 - mobilise funding and provide stability support under strict conditionality *financial assistance to benefit ESM members threatened by financial problems *This will safeguard the stability of the eurozone as a whole *ESM entitled to raise funds by issuing financial instruments or agreements / arrangements with the MS *Multilateral surveillance procedure – Member States must see their own economic policies as a matter of common concern and must attempt to coordinate them with the Council. *MS are under an obligation to avoid excessive deficits. The commission monitors the budgets and debts of each country to identify ‘gross errors’. EXCESSIVE DEFECIT PROCEDURE ESM Offers financing instruments up to 500 billion euros; *Loans *Precautionary financial aid *Bond market purchases *Repayments over 30 years Capital; *The liability of each MS shall be limited to its portion of authorised capital stock in the ESM *Members agree to unconditionally accept to undertake to provide their contribution towards the authorised capital stock in a timely manner Article 12 - If it is indispensable to safeguard the security of the eurozone as a whole, the ESM may provide financial assistance to a MS ranging from macro-economic adjustment or continuous respect of eligibility conditions. Article 13 - repayments will be enforced by the ESM, it shall be assisted by the commission, ECB and IMF to negotiate the conditonality and extent of the assistance, shall monitor compliance and progress NEO-FUNCTIONALISM - autonomy of the MS lost to EU institutions, especially the commission, surrender of national currencies. INTER-GOVERNMENTALISM - liberal interpretation that the driving force for EU integreation are the MS who agree to action where it serves their interests, failure of stability and growth pack are evidence of this. *“EMU fosters economic growth and engenders greater price stability through low inflation” (Craig) *'''The European Union is helping Greece in financial and practical terms. EU funding for the period 2007-2013 amounts to €40 billion. The debt write-down of the private sector is €100 billion and financial assistance from the EU and international partners amounts to €240 billion. This equates to €33 600 per Greek inhabitant. Or 177% of Greek GDP. * 17 MS form ESM *It is a firewall against financial collpase, allows instant access to financial assistance *Current bail out of Cyprus though macro-economic adjustment *Loan or bailout from the European Financial Stability Facility EFSF and European Financial Stability Mechanism EFSM originally - but only temporary measure *Authorised capital of 700m. *Has removed economic sovereignty * Free Movement of Persons Free movement of persons is one of the four fundamental freedoms of the internal market. It is a market freedom, In The Beginning Original Treaty provisions granted free movement rights to the economically active - workers, persons excercising right of establishment (self-employed people) and providing services. This indicates the economic origins of the Union. The principle of non-discrimination was also established. Over time'' with the aid of the ECJ rights were extended towards non-economic actors and their families but still largely based on economics or treaty rights. Secondary legislation in 1990 extended rights to family members, students, retired people. Now the TFEU incorporates rights. The advent of citizenship for all EU nationals and their families has also created a new basis for rights. The 1990 directives are repealed and replaced by the 2004/38 directive on the right of Union citizens and their family members to move and reside freely in the territory of the Member States. The economic link has slowly been severed as the Court of Justice has granted rights of non-discrimination and residence on the basis of Citizenship. These rights have both horizontal and vertical direct effect which gives them greater significance. '''ARTICLE 45 TFEU ' - the right of movement for workers - Freedom of movement of workers shall be secured within the Union. This is a functional economic approach rather than the rights-based approach established under citizenship which considered ECHR rights, particularly the right to respect for family life. ARTICLE 18 TFEU '- Non-discrimination in terms of nationality '''UGLIOLA '- The advent of free movement rights also requires the abolition of any discrimination on the grounds of nationality regarding employment, eg. any protections for nationals who take absence due to military must also protect non-nationals serving for their country of origin. Rights of workers and workseekers: 'ROYER: '(1976) Predated the adoption of citizenship but accepted that the Treaty rights to entry and residence are rights directly conferred upon MS nationals. Established the right to seek work in another Member State. 'ANTONISSEN: '(1991) It was held that in order for rights of movement to be effective job seekers must be allowed a reasonable amount of time to look for work in a host member state. Limited to 6 months unless can show genuine chance of finding employment and actively seeking. Not entitled to social advantages. Established residency rights for job seekers. 'COLLINS '- Dual irish and American nationality, came to UK to find work. Application for jobseeker's allowance was refused on the grounds that he was not habitually resident and not a worker, ECJ said that he had a right to non-discrimination and could claim financial benefits equally with nationals because he was a citizen of the EU. '''KAUR - The Member States have exclusive competence to define the acquisition of nationality but must do so in consideration of EU law. Directive 2004/38 Article 14(1) -> An individual must not become an unreasonable burden on the social system of the host Member State '' '''TROJANI: '(2004) In this case the ECJ attempted to set the limits of EU citizenship and the right to claim social advantages. Applicant was a French national living in Belgium at a Salvation Army hostel for which he did various jobs for around 30 hours a week as part of a reintegration programme, for which he received lodging, food and pocket money amount to 25 euros a week. He applied for the Belgian minimex grant - a social subsistence advantage for those living on inadequate resources but was refused because he was not a Belgian national or a worker under the definition of the council regulation. The ECJ implied that because he was excercising his right as a citizen under the Treaty he was entitled to receive equal benefits. MARTINEZ SALA '- Spanish national residing in Germany and had not been working for some time but was claiming social assistance. Concerned eligibilty for a child-raising allowance under national law. She was not considered economically active or self-sufficient but she was entitled under the principle of non-discrimination due to her status as a legal resident of Germany to the same benefits enjoyed by a national. ''Equal treatment in relation to benefits. It is not necessary for one to be a worker to claim equal treatment in terms of financial aid, so long as they are a legal resident and EU citizen. Germany had already authorized this by granting her the social assistance that she was already claiming. (1998) 'BAUMBAST '- ECJ based residency rights on citizenship, subject to the conditions of Art 21 TFEU. B had taken up residence in the UK with his family as a worker but had since accepted a job outside of the Community. His family were refused residence permit renewal because B was no longer in the community. ECJ held that as a citizen of the Union he and his family were entitled to residence. No longer ecnomically active in the UK but didn't matter because sufficient resources, despite the fact that his sickness insurance was not complete. Freedom of residence is directly effective regardless of financial requirements. 'PETER DE VOS - '''held that social advantages mean any advantages not linked to a contract of employment which are generally granted to national workers due to the mere fact of their residence and which are likely to facilitate the mobility of non-nationals in the Community if extended to them. '''IBRAHIM '- Ibrahim, the ECJ found that the residence rights of family members are not dependent upon having “sufficient resources or comprehensive sickness insurance”[1], even when separated from the EU national with the primary right of movement and wholly dependent upon social assistance; again, suggesting that the conditions contained in the Directive are no longer relevant. (2010) The rights of spouses; ''Entitled to rights if in a marital relationship. '''REED '- Originally cohabitees are not included as spouses in a marital relationship, but unmarried couples may count. This has now been overturned with the adoption of 2004/38 which accepts registred partnerships. 'DIATTA - '''Living in separate accommodation will not remove the right '''SANDHU '- Being separate but still married will not remove the right 'ARTICLE 45 TFEU - '''Free movement for workers shall be secured within the community. Such freedom shall entail the abolition of any discrimination based on nationality between workers of the Member States with regards to employment, remuneration, and other conditions for work / employment. '''TRABUCCHI - '"The migrant worker is not to be viewed as a mere source of labour, but as a human being." Who is a worker? 'LAWRIE-BLUM '- the essential feature of employment relationship is that for a certain period of time a person performs services for and under the direction of another in return for remuneration. 'LEVIN '- The definition of a worker is not to be interpreted restrictively. Must be genuine and effective activity, not marginal or ancillary. Need not be sufficient however. Part time work is permitted. Motives are irrelevant. 'KEMPF '- Part time employment of only 12 hours still considered genuine and effective. Earnings were below the minimum substistence level but he relied upon welfare to supplement it. Adequacy of earnings not relevant. 'NINNI-ORASCHE '- fixed term contract of work for 10 weeks was sufficient to be a worker. Motive of work is irrelevant. 'STEYMANN '- unpaid work that is remunerated in other ways may be considered work / indirect compensation 'TROJANI: '(2004) In this case the ECJ attempted to set the limits of EU citizenship and the right to claim social advantages. Applicant was a French national living in Belgium at a Salvation Army hostel for which he did various jobs for around 30 hours a week as part of a reintegration programme, for which he received lodging, food and pocket money amount to 25 euros a week. He applied for the Belgian minimex grant - a social subsistence advantage for those living on inadequate resources but was refused because he was not a Belgian national or a worker under the definition of the council regulation. The ECJ implied that because he was excercising his right as a citizen under the Treaty he was entitled to receive equal benefits. 'BETTRAY '- If under rehabilitation this cannot be the sole purpose of the employment to constitute a worker - there must be remuneration and the presence of genuine and effective work. 'HOEKSTRA '- person who had lost their job but was capable of finding another one does not lose worker status. 'ARTICLE 7(3) 2004/38 '- workers do not lose their status by becoming unemployed. Students rights 'RAULIN '- Citizens who are students in a host Member State have an equal right to receive financial assistance for enrolment fees as national students. 'GRAVIER '- non-discrimination rights apply to the grant of tuition fees - must be granted to citizens equally as nationals 'LAIR '- A EU citizen who has worked in the host state and wishes to undertake university studies there retains his status as a worker and is therefore entitled to workers benefits where there is a link between the employment and the studies. 'BROWN '- Concept of a worker must not be interpreted restrictively, and will not lose this status after ceasing employment. 'BIDAR '- French national living in the UK with his grandmother and completed secondary education. He began studies at UCL. His student loan application was rejected because he had not settled in the UK. The ECJ held that article 18 on non-discrimination granted equality with nationals regarding student grants and loans but it was proportionate to allow the member states to enforce a requirement of a certain degree of integration. Real link test. 'FORSTER '- Following Bidar, the ECJ ruled that it was not excessive to require residency of 5 years to ensure full integration. 'BRESSOL '- France brought in law that limited number of non-national places at Universities. Legislation created indirect discrimination. Public interest that it would otherwise affect quality of education is rejected. Family Members ''-' Case law suggests that the Union is keen to chip away at barriers to family reunification. *Directive 2004/38 extends entry and residence rights to families of Union citizens who excercise rights to free movement as workers, self employed, job seekers, students or persons of independant means. *They have been described as parasitic rights because they are not independent and are derived from the rights of the citizens. *Regardless of nationality LEBON '- Equal treatment with regards to social and tax advantages apply only to the worker and his family and not to job-seekers. '''AKRICH '- Member states may refuse where there has been abuse or fraud such as marriages of convenience provided that the action is proportionate. Moroccan national had married UK national and they had moved to Ireland together where they both worked. They sought to return to the UK but faced difficulty when UK government refused entry because Mr Akrich had a bad history as an illegal immigrant. Held that it could not be denied due to article 8 respect to family life for the UK national. 'ZHU AND CHEN '- Catherine Zhu was born in Ireland to a Chinese couple who had been living and working in the UK. She automatically gained Irish nationality. Her mother moved with her to the UK but was refused permanent residence. The ECJ held that as a citizen Catherine had the inalienable right to reside in the EU territory and that denying the rights of her parents to reside with her when she cannot take care of herself would render her rights ineffective. 'ZAMBRANO '- The parents of a child that is an EU national must be granted rights of work and permanent residence in order to protect the right of the child. No cross-border movement element is required for this right to apply, eg. the child does not need to excercise the right of free movement. 'JIA '- It is not necessary that the non-community spouse had lived in an EU Member state prior to settling in the host state and requesting permanent residence, so long as other requirements are met. See Metock. 'CARPENTER '- Wife of UK citizen had phillipines nationality, and was denied a residence permit in the UK, the government tried to deport her. It was argued that EU law only confers rights on the spouses of EU citizens who travel to a host member state to excercise free movement, whereas Mr Carpenter merely travelled on business but resided in the UK and effectively did not cross borders. The ECJ rejected this argument, stating that to deport Mrs Carpenter would affect Mr Carpenter's right to move within the EU because she was required to look after the children while he was away for business reasons. As such the right to respect for private and family life overruled, and allowed her to stay. 'METOCK '- Third country nationals - Control of immigration does remain the competence of the Member States, but community law can confer rights on third country nationals when necessary. Mr Metock and three other non-community nationals had entered Ireland and claimed asylum. All four were unsuccessful. Once they had arrived, the four had married Irish nationals. Thee of the EU citizen spouses had moved to Ireland in excercise of their movement rights before they met their new partners. Irish law required that the third country nationals had legally resided in a different Member State before moving to Ireland in order to gain residence rights. They had been rejected because they had not legally resided in the EU prior to arrival. The ECJ rejected the requirement of previous residence because the residence directive confers rights on all family members of EU citizens, regardless of their nationality, there is a division of competence between the Union and the MS. 10 Member States raised concern about the judgment and the risk of opening the 'floodgates' but the ECJ rejected them. Right of Permanent residence *Union citizens and their family members who have resided in the host state continuously for at least 5 years gain permanent residency rights that do not rest upon economic status. Can only be lost through absence of over 2 years. Limitations *Rights of free movement are not unlimited *Article 21 TFEU - subject to the 'conditions and limitations laid down in this treaty and the measures adopted to give it effect" *although nationality is subverted in the interests of non-discrimination, discretionary conditions ensure sovereignty is respected *Member States also have the right to place limits of free movement and residence on grounds of public policy, public security, public health. These grounds are elaborated in 2004/38; 'GROENER '- language requirements must be necessary for the reason of the nature of the post 'ANGONESE '- language requirements are illegitimate unless justified by factors unrelated to nationality and that are proportionate. In this case the required language certificate was for both nationals and non-nationals but was far easier for nationals to gain and therefore disproportionate and only justified on grounds of nationality. 'BOSMAN '- Football association placed a fee that was required to be paid before a player could be transferred and move to a different team and state. ECJ held that this was a barrier to free movement of workers and therefore prohibited by Art 45 TFEU. Directive 2004/38 on the rights of citizens of the EU and their family members to move and reside freely in the territory of the Member States; *lays down the conditions governing free movement *the right of permanent residence for Union citizens and their families *the limits in terms of public policy, security and health *Family member means - the spouse, registered partner, descendants under the age of 21, dependant direct relatives *All Union citizens and their families, regardless of nationality, workers, the self-employed, students, persons of independent means and their families *'ARTICLE 6 '- right of residence for up to '''3 months with no conditions or formalities other than valid ID / passport *'ARTICLE 7 '- right of residence for a period of more than 3 months if they are a worker or have sufficient resources for themselves and family not to become a burden on the member state and have comprehensive sickness insurance, or are a student with sufficient resources and sickness insurance including if financed by Member State but not a burden on social assistance of the state. *'ARTICLE 27 '- the MS is entitled to place limits on grounds of public policy, health and security as long as they do not serve economic ends. Must comply with proportionality. Personal conduct must represent a sufficiently serious threat. Health reasons will only constitute those defined as having epidemic potential by the WHO. *'ARTICLE 24 '- the MS is not obliged to provide maintenance grants and student loans to persons other than workers, the self-employed and their families. May be exceptions, as in Forster. Citizenship of the European Union *Free movement in the internal market has created a people's Europe with a European polity under European citizenship *First realised in the Treaty of Rome which extended citizenship-esque rights to workers and some restrictive rights to the families of workers and workseekers with ECJ jurisprudence *Rights for non-economic actors such as students and workseekers and financially independent were enshrined in the three''' residence directives''' of the 1990s *Union citizenship was later established by the Treaty on European Union 1992 *Raises issues of sovereignty. *Does not replace but merely supplements national citizenship *Gives a deeper and more tangible sense of belonging *Granting rights means no longer symbolic or decorative status *The ECJ has played a large role in this, enlarging and expanding the rights that citizenship confers *'ARTICLE 20 TFEU '- 'Citizenship of the European Union is hereby established' *'ARTICLES 21-25 TFEU '- citizenship rights *'ARTICLE 9 TEU '- Citizenship of the union is conferred upon all EU nationals and shall be additional to national citizenship and not replace it. *'ARTICLE 11 TEU '- Citizens initiatve - 1million EU citizens may invite commission to legislate. *The scope of movement rights is contained in D-2004/38 *Confers a sense of membership and identity - not aliens! *European citizenship is associated with the mobility of workers and labour for the creation of an internal market, it progressively reflects a people's europe *imposes no additional duties however, making it a rather vague and largely contrived status *It can be argued that EU citizenship has limited national discretionary powers, with the proactive approach of the ECJ developing the symbolic concept of citizenship as envisaged by the Treaty into a supranational status capable of defeating any obstacle to the full enjoyment of rights and overpowering the States’ sovereign powers in doing so. *Suggestion that citizenship should be based upon residency not nationality because this would avoid the many different rules on acquistion of nationality put in place by the MS *Criticized due to the thinness of the rights conferred and their economic focus, mulptiple conditions which are weakly defined and enforced, limited impact of political rights *Has not heralded any democratic, political, institutional change in the EU *Its potential is its greatest strength - Kostakopoulou Union citizenship confers 4 rights; #The right to free movement and residence in the EU #The right to vote and stand in European Parliament elections #Diplomatic and consular protection #The right to petition the European Parliament and Ombudsman Citizenship is dependant upon the status as a national of a Member State. As such the Member States are the gatekeepers of citizenship, maintaining the power to determine the conditions of nationality. However such decisions fall within the ambit of EU law and are amenable to review by the ECJ for proportionality. 'GRZELCZYK ' - 'Union citizenship is destined to be the fundamental status of the nationals of the Member States'. Discrimination on the grounds of nationality is not accepted. French national had worked in Belgium and then become a student there and stopped working. He applied for minimex and was rejected because he was not a worker. ECJ held that this was discriminatory because the same condition was not required of nationals, therefore they must grant it to non-nationals. Access to social benefits. (2001) - 'Here the ECJ based non-discrimination rights on citizenship, giving it more substantive meaning. ' 'BAUMBAST ' - ECJ based residency rights on citizenship, subject to the conditions of Art 21 TFEU. B had taken up residence in the UK with his family as a worker but had since accepted a job outside of the Community. His family were refused residence permit renewal because B was no longer in the community. ECJ held that as a citizen of the Union he and his family were entitled to residence. No longer ecnomically active in the UK but didn't matter, despite the fact that his sickness insurance was not complete. 'SALA v FREISTAAT BAYERN ' - The ECJ based non-discrimination rights on citizenship status. *"helps to abolish the hierarchy between the different loyalties... and to allow individuals a multiplicity of associative relations without binding them to a specific nationality" (Preuss) *"does not convey any kind of national identity of 'Europeanness' (Preuss) *"the importance of European citizenship lays not so much in what it is, but in what it should or might be" (Kostakopoulou) *"riddled with fundamental ambiguities, contradictions and tensions" (Kostakopoulou) *"The notion of immigrant or temporary guest has been replaced by that of Union citizen" (Kostakopoulou) *The addition of citizenship has, as Metock shows, created "unsustainable tensions created by the application of enhanced citizenship rights" (Lansbergen in a European policy brief) *Due to the lack of obligations and new rights EU citizenship is "feeble and incomplete" - Faist Models of European Citizenship - *********elaborate********** *Market citizenship European citizenship is associated with the mobility of workers and labour for the creation of an internal market, it progressively reflects a people's europe *Civic republican European citizenship Democratic model, mirroring that of the USA, whereby states confer power to one organised central entity in the interests of uniformity and union. However, EU has political and civil rights but no social ones (assistance, welfare, poverty aids) To do so would contravene Parliamentary sovereignty which suggests no civic republican citizenship. *Deliberative European citizenship *Corrective European citizenship *Transformative European citizenship